FORTUNATO BORRE vs. COURT OF APPEALS and THE MANOTOK SERVICES, INCORPORATED G.R. No. 57204.

March 14, 1988 FACTS: On August 29, 1979, petitioner filed a complaint against private respondent Manotok Services, Inc. to recover rentals paid by them alleging that the land leased to them by the company was actually public land, forming part of the Estero de Sunog-Apo and Estero de Maypajo and did not belong to the company. On motion of the respondent company, the trial court dismissed the complaint on November 11, 1980 on the ground that the company's ownership of the property was recognized by the State with the passage of Pres. Dec. No. 1670. On December 13, 1980, petitioners moved for reconsideration arguing that respondent company's titles covered lots which were portions of the Estero de Sunog-Apo and Estero de Maypajo and therefore should not have been included in those titles because these portions are public property which cannot be appropriated and titled by private persons like the respondent company. The trial court denied the motion in its order dated December 22, 1980 which was received by petitioners on January 12, 1981. A second motion for reconsideration was filed on January 14, 1981 on the ground that a subsequent survey showed that the lots occupied by petitioners are not covered by respondent company's titles, and hence, are neither covered by Pres. Dec. No. 1670. In its order dated January 20, 1981, the trial court denied the second motion. Petitioners received the court order on January 30, 1981. The next day, January 31, 1981, the last day for perfecting their appeal from the dismissal of their complaint, petitioners filed by registered mail a notice of appeal and a motion for extension of time to file the record on appeal. However, they did not file their appeal bond until February 2, 1981 for which reason the court dismissed their appeal, the thirty-day period for perfecting appeal having expired. Petitioners went to the Court of Appeals on certiorari but their petition was dismissed. Hence, this petition for review. ISSUE: Whether or not the late filing of the appeal bond of the petitioners was due to "excusable negligence". Whether the respondent judge committed grave abuse of discretion in dismissing the appeal of the petitioners. HELD: Petition is denied. RATIO:

This is not the first time that this Court is faced with a question on the timeliness of filing the appeal bond, a requirement for perfecting an appeal which had been dispensed with by Section 18 of the Interim Rules of Court. Although this new procedural rule may be given retroactive effect, the extent of its retroactive application is, however, limited to actions pending and undetermined at the time of its approval and does not extend to actions which had already become final and executor. Before the Interim Rules of Court took effect, the 1964 Rules of Court required the filing with the trial court within thirty (30) days from notice of order or judgment, a notice of appeal, an appeal bond, and a record on appeal. In the case at bar, although the notice of appeal and the motion for extension of time to file the record on appeal were filed within the reglementary period, the appeal bond was filed two days late, or after the period for perfecting an appeal had lapsed. Inasmuch as the appeal was not perfected on time, the decision of the trial court became final and executory on January 31, 1981. The trial judge committed no error in dismissing the appeal. This is clearly set forth in Section 13, Rule 41 of the Rules of Court: SEC. 13.Effect of failure to file notice, bond, or record on appeal. Where the notice of appeal, appeal bond or record on appeal is not filed within the period of time herein provided, the appeal shall be dismissed. There is, therefore, no cogent reason to reverse the findings of the Court of Appeals. This Court has repeatedly held that perfection of an appeal in the manner and within the period laid down by law is not only mandatory but jurisdictional. As Justice J.B.L. Reyes has pointed out, "The right to appeal is not a natural right nor part of due process; it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law Unless there is a showing of excusable negligence justifying the failure to file the appeal bond on time, the period within which to perfect an appeal cannot be extended to accommodate the appellant. Petitioners' mistake in believing that the Office of the Clerk of Court would be closed on Saturdays does not constitute "excusable negligence" which would justify a liberal application of the pertinent rules on the perfection of an appeal. Petitioners' counsel, a practitioner in the Metro Manila area, should have known or exerted effort to inquire about office hours in courts on Saturdays instead of assuming that Saturdays are not working days. No abuse of discretion, much less a grave one at that, as alleged, was committed by respondent Judge in dismissing petitioners' appeal.